Privative Clauses: Historical Anomalies That Threaten Access to Justice.

• Author: Tree, Jason

Introduction

Privative clauses are legislative provisions that purport to protect administrative actions from judicial scrutiny. On their face, privative clauses often appear to be unassailable, featuring language that the decision of an administrator is final and conclusive, and not subject to appeal to, or review by, any court. Such language is likely to convince all but the most persistent layperson that they have no further remedy in the face of an unfavourable decision by an administrator.

This paper will argue that privative clauses are not only legally questionable, but that they threaten access to justice by misleading the layperson (or even the occasional lawyer). When it comes to privative clauses, the law as written is not the law as applied in practice. This poses a serious threat to the rule of law principle.

Privative clauses are nearly ubiquitous throughout Canadian legislation that empowers administrators to make decisions. They can be found in legislation as varied as the Plant Protection Act, (1) the Health of Animals Act, (2) the Canada Labour Code, (3) and the Royal Canadian Mounted Police Act, (4) to name but a few. (5) Where power or discretion has been delegated to an administrator, a privative clause often follows.

Legal practitioners and scholars know that privative clauses do not provide much of a shield at all, no matter how clear or strong the language may be. While they may have originally provided the intended effect, over the years these clauses have lost any meaning. The rationale for ignoring the literal words of the legislator has ranged from jurisdictional reasons (6) to preserving the rule of law. (7) Regardless of the reason, the effect has been the same: privative clauses have not ousted the modern court's ability to review the actions of a government administrator.

This dissonance between the legislator's words and their legal effect creates a barrier for access to justice. Only those who know to look beyond the words of the statute (or those who can afford legal counsel) are even aware of a judicial remedy to a contested administrative decision.

The late Bora Laskin, writing on the effect of privative clauses in 1952 (although it should be noted that he was an ardent supporter of such clauses), remarked: "It is worth repeating that, if judicial review is desirable, it should be openly conceded and openly established." (8) Yet 70 years later, identical privative clauses continue to be inserted into federal and provincial legislation, obfuscating the true availability of judicial scrutiny.

Privative Clauses No Longer Have Any Practical Legal Effect

Privative clauses have had a varied effect over the years. In Canada's early history, privative clauses appeared to have been generally respected by the courts. In an 1877 Supreme Court of Canada case, the Court faced a strong privative clause, to which then Chief Justice William Richards opined:

I think that the declared intentions of the Legislature ought to be respected, and the parties should be left to assert their rights in some other way than by asking the Court, on an application such as this is, to declare the award invalid and void, when the Legislature has said it shall be binding, final and conclusive on all parties, unless inquired into in the manner prescribed by the Act, and shall not be inquired into by any Court on certiorari. (9)

Similarly, the British Columbia Court of Appeal considered the application of a privative clause in the face of a habeas corpus application on an immigration matter in 1914. If one can look past the overtly racist comments on the merits of the case (which is admittedly difficult), one can observe a similar conclusion on the complete barrier to judicial intervention that a privative clause achieved:

In my opinion The Immigration Act and the orders-in-council referred to constitute full and justifiable warrant for the detention of the appellant by the immigration authorities, and for his deportation, the deportation order being good and sufficient in law even were the decision of the Board of Inquiry reviewable, and no grounds are made out for the appellant's discharge. But in so holding I am not to be understood as holding that there is any power of review or the right to invoke habeas corpus proceedings to effect the discharge of the appellant, as my opinion is that s. 23 is an absolute inhibition up on the court, and there is no jurisdiction in the court to grant a writ of habeas corpus and thereupon discharge the appellant from custody. (10) Yet as the 20th century progressed, the approach of the courts began to shift. Courts first gently probed jurisdictional questions that might affect the outcome of an administrator's decision but tried to avoid the merits of the decision. For instance, in 1938 the Alberta Court of Queen's Bench (relying on an earlier Privy Council decision (11)) carved out space to examine an administrative decision as follows:

The question involved here is not as to the merits but is a collateral matter upon which the jurisdiction of the tribunal depends and there is nothing in the Act which gives finality to a decision of the Board on such a matter. In the result, I am of opinion that the finding of the Board, with reference to the debt due to the applicant, is open to review upon certiorari, (12) This gentle probing quickly developed into a much more robust examination of administrator's decisions, often couched in broad jurisdictional language. For instance, an Ontario court framed modern-day elements of procedural fairness as jurisdictional questions in a 1945 decision:

Every person has an inherent right to an opportunity of being heard before he is condemned, by any tribunal. Over one hundred years ago Lord Denman C.J. in Innes v. Wylie et al. (1844), 1 Car. & Kir. 257, 174 E.R. 800, in discussing the maxim audi alteram partem, said: "No proceedings in the nature of a judicial proceeding can be valid unless the party charged is told that he is so charged, is called on to answer the charge, and is warned of the consequences of refusing to do so." That principle extends to every case in which substantive rights are affected or put in jeopardy in a judicial proceeding, and is not limited to judicial proceedings in criminal matters. The result of the English decisions to which I have referred is...